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this case, was not in conflict with section 8 of article 1 of the Constitution of the United States in regard to the regulation of commerce.

It is contended for the State of Vermont that this court has no jurisdiction of this case, because the record does not present a Federal question. We are of opinion that this contention is correct, and that the writ of error must be dismissed for want of jurisdic. tion in this court.

No point in the commerce clause of the Constitution of the United States was taken in the County Court in regard to the present case, or considered by the Supreme Court of Vermont. One reason for this may have been that the decision in Pierce v. New Hampshire, 5 How. 504, had not theretofore been in terms overruled or questioned by this court, the cases of Bowman v. Railway Co., 125 U. S. 465, and Leisy v. Hardin, 135 id. 100, not having been then decided. The only points raised in the County Court, according to the exceptions, were that the facts set forth in the written admission of O'Neil did not constitute an offense against the statute of Vermont under the complaint, and that he ought to be found not guilty under the facts so set forth. The matters thus excepted to were too general to call the attention of the State Court to the commerce clause of the Constitution, or to any right claimed under it. Farney v. Towle, 1 Black, 350; Day v. Gallup, 2 Wall. 97; Edwards v. Elliott, 21 id. 532; Warfield v. Chaffe, 91 U. S. 690; Susquehanna Boom Co. v. West Branch Boom Co., 110 id. 57; Clark v. Pennsylvania, 128 id. 395.

The only question considered by the Supreme Court in this opinion, in regard to the present case, was whether the liquor in question was sold by O'Neil at Rutland or at Whitehall, so as to fall within or without the statute of Vermont, and the court arrived at the conclusion that the completed sale was in Vermont. That does not involve any Federal question.

fore us upon a ground broad enough to maintain its judgment without considering any Federal question. No Federal question was presented for its decision as to this case, nor was the decision of a Federal question necessary to the determination of this case, nor was any actually decided, nor does it appear that the judg ment as rendered could not have been given without deciding one. Hale v. Akers, 132 U. S. 554, 565, and cases there cited; San Francisco v. Itsell, 133 id. 65; Hopkins v. McLure, id. 380; Blount v. Walker, 134 id. 607; Beatty v. Benton, 135 id. 244; Johnson v. Risk, 137 id. 300; Butler v. Gage, 138 id. 52; Beaupre v. Noyes, id. 397, 402; Leeper v. Texas, 109 id. 462; Henderson Bridge Co. v. Henderson City, 141 id. 679; Hammond v. Johnston, 142 id. 73; New Orleans v. New Orleans Water-Works Co., id. 79.

It was entirely immaterial how the liquor sold by O'Neil at Rutland came to be there, for sale there, whether it was made there or whether it was brought in some way from the State of New York. The only question was whether it was at Rutland so as to be capable of sale there, and whether it was sold there.

Moreover, under the practice in the Supreme Court of Vermont, the very error relied upon must appear affirmatively in the exceptions. Sequin v. Peterson, 45 Vt. 255; State v. Preston, 48 id. 12; Hathaway v. Insur ance Co., id. 335; State v. Brunelle, 57 id. 589; Spauld ing v. Warner, id. 654; Rowell v. Fuller's Estate, 59 id. 688.

The result is that the writ of error must be dismissed.

FIELD, HARLAN and BREWER, JJ., dissenting. The portion of Mr. Justice Field's dissenting opinion on the points passed on by the court is as follows:

The transactions considered in this case, which extended over a period of three years, cannot be described without showing that they embody the ele ments which constitute inter-State commerce, sales of goods by a citizen of one State to a citizen of another State, and their transportation between the States in their delivery to the purchaser. These facts must have been seen by the Supreme Court of Vermont. They were facts constantly presenting themselves and could not have been overlooked. Nor can it make any dif ference what motives may be imputed to the parties on the one side in selling and on the other in purchas

In its opinion in 58 Vermont, 140, the Supreme Court considered not only the present case and the case before referred to against O'Neil for keeping intoxicating liquors with intent to sell, etc., but also two other cases, being proceedings in rem for the condemnation of intoxicating liquor on its seizure, in which latter two cases the National Express Company was claimant, and in one of them the liquors were forfeited, while in the other of them some of the liquors (being those which had been paid for to the shipper at White-ing the goods. The only inquiry which can be consid hall, N. Y.) were returned to the claimant and the remainder forfeited.

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In its opinion the court said: Concerning the claim that section 8" of article 1 "of the Federal Constitution, conferring upon Congress the exclusive right to regulate commerce among the States, has application, it is sufficient to say that no regulation of or interference with inter-State commerce is attempted." That this observation had reference solely to the two seizure cases, and not to the present case, is apparent from the fact that the court immediately went on to say: "If an express company or any other carrier or person, natural or corporate, has in possession within this State an article in itself dangerous to the community, or an article intended for unlawful or criminal use within the State, it is a necessary incident of the police powers of the State that such article should be subject to seizure for the protection of the community." The liquors in those two cases in rem were seized by the sheriff at Rutland, while in the posses sion of the National Express Company, some of them having been delivered to that company at Troy, N. Y., and some at Whitehall, N. Y., and all of them having been ordered by persons at Rutland for their own use, and not for sale or distribution contrary to law.

The Supreme Court of Vermont decided the case be

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ered is, were the goods bought and sold subjects of lawful commerce? for if so they were in their transportation between the parties-citizens of different States-until their delivery to the purchaser or consignee in the completion of the contracts of sale, under the protection of the commercial power of Congress. It is not necessary, to give this court jurisdiction to review the judgment of that court, that the record should show that the objection that the transactions were those of inter-State commerce was specifically taken in terms in the court below. It is sufficient if the facts of the record show that the question of their being transactions of that character was involved in the case, though the court below may state in various forms that it did not deem it necessary to consider it. In Murray v. Charleston, 96 U. S. 432, 441, it was held that whenever rights acknowledged and protected by the Constitution of the Uuited States are denied or invaded by State legislation, which is sustained by the judgment of a State court, this court is authorized to interfere; that the jurisdiction to re-examine such judgment cannot be defeated by showing that the record does not in direct terms refer to a constitutional provision, nor expressly state that a Federal question was presented, and that the true jurisdictional test is whether it appears that such a question was decided

adversely to the Federal right. Mr. Justice Strong, speaking for the court, said: "In questions relating to our jurisdiction, undue importance is often attributed to the inquiry whether the pleadings in the State court expressly assert a right under the Federal Constitution. The true test is not whether the record exhibits an express statement that a Federal question was presented, but whether such a question was decided, and decided adversely to the Federal right. Everywhere in our decisions it has been held that we may review the judgments of a State court when the determination or judgment of that court could not have been given withont deciding upon a right or authority claimed to exist under the Constitution, laws or treaties of the United States, and deciding against that right. Very little importance has been attached to the inquiry whether the Federal question was formally raised." and the court cited the case of Crowell v. Randell, 10 Pet. 368, in support of this position, where it was laid down, after a review of previous decisions, "that it is not necessary the question should appear on the record to have been raised and decision made in direct and positive terms, in ipissimis verbis, but it is sufficient if it appears by clear and necessary intendment that the question must have been raised and must have been decided in order to have in-ordered by residents of Vermont from dealers doing duced the judgment." See also Eureka, etc., Canal Co. v. Superior Court, 116 U. S. 410; Arrowsmith v. Harmoning, 118 id. 194.

ing proceedings for the condemnation of the liquors seized. They were considered together, and the opinion of the court, delivered by its chief justice, covered them all and discussed the principal questions involved. It was prepared by him and handed to the reporter, and under the latter's supervision it was published in the official reports of the decisions of the court, and is found in volume 58 of the Vermont Reports. The law of Vermont requires the judges of the Supreme Court to prepare and furnish to the reporter each year reports of the opinions delivered by them, and the reporter to prepare them for publication, and to superintend the printing. In looking at the synopsis of the argument of counsel, which accompanies the report of the opinion thus prepared, we find that they took the position that the transactions complained of were those of inter-State commerce, and that the State could not prohibit or regulate that commerce. In Kreiger v. Railroad Co., 125 U. S. 39, it was held that this court might examine the opinious of a State court, delivered and recorded, to ascertain the ground of its judgment. And looking at the opinion of the Supreme Court of Vermont, we find several paragraphs bearing upon the question of inter-State commerce. One of the paragraphs describes the sales thus: "The liquors were

If the vendor had, during the same period of three years, sold every third or fourth day a box of fruit or a package of clothing to the vendees in Vermont, payable on delivery, the transactions would have been of the same character as those under consideration, those of inter-State commerce, and I doubt whether a question on this point would have been raised by any one. The present transactions, in the fact that the articles are liquors, are in no respect different in character. The decision made by the court below could not have been rendered without its assuming that the facts which constitute inter-State commerce were transactions of a different nature.

If that court could, by that assumption, bind this court, the supervising authority of our jurisdiction would be lost in every case by the simple assertion of the court below that it placed its decision on some particular ground of its own creation. To assent to any such doctrine would be to abrogate our jurisdiction in a most important particular, and that is in my judgment exactly what is done in this case. In the opinion of the majority it is stated that the only question considered by the Supreme Court of Vermont, in regard to the present case, was whether the liquor in question was sold by O'Neil at Rutland or Whitehall, so as to fall within or without the statute of Vermont, and it arrived at the conclusion that the completed sale was in Vermont. That, says this court, does not involve any Federal question. To this I answer that before the State court could reach the question whether the sale fell under the law of Vermont it had to determine whether the sale was completed in that State or in New York; whether therefore an executory sale of goods in New York, completed in Vermont, was or was not a transaction of inter-State commerce, and until that question, which was a Federal one, was disposed of, the alleged State question could not be considered. But that the commercial question was brought to the attention of the Supreme Court of Vermont, was argued by counsel there, and passed upon by that court, does not rest as an inference from the facts necessarily involved; it appears from its opinion and the official report of the case.

There were at the same time three other cases before the court, arising upon substantially the same facts, one against the same respondent and the other two be

business in the State of New York, who selected from their stock such quantities and kinds of goods as they thought proper in compliance with the terms of the orders, put them up in packages, directed them to the consignees and delivered them to the express company as a common carrier of goods for transportation, accompanied with a bill or invoice for collection." I am unable to make out of transactions of this character any thing other than those of inter-State com

merce.

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In another paragraph the court refers directly to the commercial clause of the Constitution, and repudiates its application. It says: Concerning the claim that section 8 of the Federal Constitution, conferring upon Congress the exclusive right to regulate commerce among the States, has application, it is sufficient to say that no regulation of or interference with inter-State commerce is attempted," and the court concludes its opinion covering all the cases by holding that in the two cases of State v. O'Neil the respondent takes nothing by his exceptions. That is to say, the court, not denying that the question was raised in the O'Neil Cases, passed it off with the statement that no regulation of or interference with commerce was attempted, thus brushing out of consideration the Federal question by assuming that the transactions were purely of State cognizance. In another paragraph the State court expresses disapprobation of the claim that the Federal authority was supreme in matters of interState commerce. "If it were competent," said that court, for persons or companies to become superior to State laws and police regulations, and to overrule and defy them under the shield of the Federal Constitution, simply by means of conducting an inter-State traffic, it would indeed be a strange and deplorable condition of things." That is to say, that the importation of goods into the State from another State should be protected under the Federal Constitution against hostile State legislation would be deplorable. This observation was undoubtedly made in response to suggestions that transportation of goods between the States was free until regulated by Congress. Deplor able as the Supreme Court of Vermont may have thought the doctrine, it was the settled law, as announced by repeated decisions of this court. In County of Mobile v. Kimball, 102 U. S. 691, 697, speaking of the power of Congress over commerce, this court said: "The subjects indeed upon which Congress can act under this power are of infinite variety, requiring

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for their successful management different plans or modes of treatment. Some of them are national in their character, and admit and require uniformity of regulation, affecting alike all the States; others are local, or are mere aids to commerce, and can only be properly regulated by provisions adapted to their special circumstances and localities. Of the former class may be mentioned all that portion of commerce with foreign countries or between the States which consists in the transportation, purchase, sale and exchange of commodities. Here there can of necessity be only one system or plan of regulations, and that Congress alone can prescribe. Its non-action in such cases with respect to any particular commodity or mode of transportation is a declaration of its purpose that the commerce in that commodity, or by that means of transportation, shall be free."

And in Leisy v. Hardin, 135 U. S. 100, 119, this court cites from a previous opinion the following language as to the power of Congress over subjects of interState commerce, declaring that its doctrine is now firmly established: "Where the subject is national in its character, and admits and requires uniformity of regulation, affecting alike all the States, such as transportation between the States, including the importation of goods from one State into another, Congress can alone act upon it, and provide the needed regulations." See also Welton v. State, 91 U. S. 275, and Brown v. Houston, 114 id. 622, 630.

In another paragraph of the opinion the State court again refers to the character of the transaction between the vendor in New York and the vendee in Vermont, and the effect of the instruction to the carrier not to deliver the goods except upon prior or contemporaneous payment of the price, upon which it Bays: "The contract of sale therefore remained inchoate or executory while the goods were in transit or in the hands of the express company, and could only become executed and complete by their delivery to the consignee. There was a completed executory contract of sale in New York, but the completed sale was or was to be in this State" (Vermont). No better description of a transaction of inter-State commerce could be given, an executory contract of sale made in one State by a citizen thereof to a citizen of another State, and a completed sale under that contract by the transportation and delivery to the purchaser in the latter State.

laration that the power of Congress over inter-State commerce is exclusive of all State authority.

It is true that the presumption of law is that the majority of the court are right and that I am wrong, yet in the face of this presumption, and the positiveness with which the views of the majority are asserted, I cannot yield my convictions the other way, which were never clearer or stronger in any case.

SALE-PLACE-DELIVERY IN ANOTHER

COUNTY.

PENNSYLVANIA SUPREME COURT, MARCH 28, 1892,

COMMONWEALTH V. HESS.

Defendant, having a wholesale bottler's license in P. county, received in the regular course of business at his place in that county orders from retailers in M. county. On receipt of the orders the liquor was set apart to the purchasers, and charged to them on defendant's books, and was then delivered to them in M. county, by means of defendant's own wagon. Held, that defendant was not guilty of selling liquor in M. county, since the sale, as between him and the purchasers, was completed in P. county.

N. H. Larzelere aud M. M. Gibson, for appellant. Henry M. Brownback, Dist. Atty., and B. L. Cain, for the Commonwealth.

PAXSON, C. J. The defendant was convicted in the court below of, selling liquor without a license. The whole case is developed by the specification of error, which is as follows: "The court erred in its charge to the jury upon the following facts in the case, the whole of which charge is specified as error, and which is as follows: Upon the uncontradicted facts as established by the Commonwealth, and not denied by the defense, which are as follows: Francis Hess has a bottler's license in the city of Philadelphia, doing business at No. 2440 Mascher street, in said city. For some time within two years, and prior to June 1, 1891, Frank Cottman, a licensed hotel-keeper at Jenkintown, Montgomery county, Penn., sent to Hess' place of business in Philadelphia orders from week to week for lager beer and porter, the whole amount of said orders being about $175; that upon the receipt of said orders by Hess, the material ordered was set apart and charged to Cottman upon the books of Hess, and was then loaded upon Hess' delivery wagon and by him and an employee named George Ginader driven to Jenkintown in Montgomeey county, and delivered to Cottman. Bills were afterward made out and sent to Cottman, who paid them either by checks sent to Philadelphia or in cash paid in person at the place of business of Hess in Philadelphia, after the delivery was made to Cottman at his place of business. A similar transaction took place between said Francis Hess and George Ginader, and Henry J. Wilson, a keeper of a licensed hotel at Hatboro, Montgomery county, on six or eight occasions in the months of April and May, 1891. There were also orders of Cottman and Wilson filled by shipment by railroad to Jenkintown and Hatboro. Hess had no license from the court of Mont

In the face of these extracts from the opinion of that court it strikes me with surprise that any one can contend that in deciding the case it did not consider the question of inter-State commerce. It seems to me to have been the principal question before it, and the only one which gave it any trouble in the disposition of the case. But notwithstanding these statements and the character of the transactions themselves, which do not admit in my judgment of any accurate description without involving necessarily elements of inter-State commerce, the assertion is made by the majority, with great positiveness, as though it would brush aside opposing considerations, that no Federal question was presented for the decision of the court as to this case, nor was the decision of a Federal question necessary to the determination of this case, nor was any actually decided, nor does it appear that the judg-gomery county; the court is respectfully asked to ment as rendered could not have been given without deciding one." If this assertion could be received with half the confidence with which it is made, the whole controversy would be settled, and any discussion upon the points raised would be precluded. The opinion of the court would then stand as evidence of wrongs inflicted upon a citizen of the United States under the forms of law, and if the decision be right, of the inability of their constituted tribunals to give to him any redress, notwithstanding the often-repeated dec

charge the jury that there were no violations of the liquor laws as set out in said bill of indictment, and the verdict of the jury must be not guilty.' The court: 'Gentlemen of the jury, I cannot instruct you as requested. The defendant undertook to deliver by the wagon of Hess, and the sale was completed in this county. If you find the facts as set forth in the above request, I charge you that they show a violation of the liquor laws, as set forth and charged in the bill of indictment. I instruct you however, as requested, that

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you are the judges of the law as well as of the facts, under the advice and direction of the court. You are to look to the court for the best evidence of the law, just as you are to look to the witnesses for the best evidence of the facts.'"

It must be conceded at the outset that the defendant was pursuing a lawful business. It is not only expressly authorized by law, but he has paid a large sum of money for the privilege of carrying it on. It was not denied, and could not well be, under the act of Assembly, and our decision thereon, that he has a right to sell his liquors at wholesale, not only to customers in the city of Philadelphia, but throughout the State and the country at large. It is well known that the business of wholesale dealers is not limited to any particular locality, but extends in many instances over many portions of the civilized world. In the case of wholesale dealers in liquor, they are restrained by the statute and the terms of their license to sales in the county in which their license was granted. It does not follow however, and it is not the law, that their sales are limited to persons residing in said county. It is not denied, and it is settled law, that the defendant may sell to any retail dealer in any part of the Commonwealth, provided the sales are made at his place of business in the county of Philadelphia. Such sales may be made in the usual course of business. It is not necessary that a retail dealer from an adjoining county should call at the place of business of the wholesale dealer in the county of Philadelphia, in order to make his purchase. He may order his goods by mail as in other cases. When the law licensed the wholesale dealer to carry on his business in the county of Philadelphia it carried with it the authority to conduct it according to the usual mode of business, but it does not justify him in peddling his goods around in other counties, and selling them there. So much was decided in Com. v. Holstine, 132 Penn. St. 357, where it was held that the driver in the employ of a bottler having a license in Philadelphia county, who took orders in Montgomery county for liquors, which were subsequently loaded upon the defendant's wagon in Philadelphia, and delivered to the purchasers in Montgomery county by said driver, who collected the money therefor, was properly convicted and sentenced for selling liquors without license in Montgomery county. It was said in the opinion of the court: This was clearly a sale and delivery in Montgomery county. The license held by Mr. Otto authorized him to sell in Philadelphia. He had a right to sell to any person in this Commonwealth, provided the sale was made at his place of business (Com. v. Fleming, 130 Penn. St. 138), but he had no right to peddle his beer through other counties not covered by his license and make sales there." We accordingly held that, as his employer was not protected by a license the defendant was not protected. In the case in hand the defendant was not peddling his beer through Montgomery county. The driver of his wagon did not solicit orders in that county. The defendant delivered liquors only upon orders which had been received in the usual course of business at his place in Philadelphia. It was urged however that because the delivery in Montgomery county had been made by means of his own wagon it was a sale in said county, and a violation of the License Law. The court below so held, and sentenced the defendant to pay a fine of $500, and to undergo an imprisonment in the Montgomery county prison for three months.

It appears from the conceded facts that the defendant was in the habit of receiving orders at his place of business in Philadelphia, from week to week, for lager beer and porter from Frank Cottman, a licensed hotelkeeper at Jenkintown, Montgomery county, and from Harry J. Wilson, a licensed hotel-keeper at Hatboro,

in said county. Upon the receipt of such orders the material so ordered was set apart and charged to the purchasers upon the books of the defendant, the sale in each instance being upon credit. The goods thus sold and set apart to the respective purchasers were then either loaded upon defendant's delivery wagon, and delivered by the driver of said wagon to the purchaser, in the usual course of business, or were shipped by railroad to the purchaser. It was conceded upon the argument that, had the liquor in question been shipped by rail, or by any other common carrier, to the purchaser, it would have been a sale and delivery in Philadelphia, and not a violation of the License Law. This is the doctrine of Com. v. Fleming, supra, where it was held that, if a liquor dealer in Allegheny county receive an order for liquor, to be shipped to the purchaser in Mercer county, C. O. D., and in pursuance of the order the liquor be delivered to a common carrier in Allegheny county, for transportation to the vendee, at the latter's expense, the delivery to the carrier is a delivery to the purchaser in such a sense as to complete the sale in Allegheny county. If we sustain the court below in this case we are brought face to face with this proposition: that if a wholesale dealer in liquor receives an order from a customer in an adjoining county, and in pursuance of such order delivers the liquor to a common carrier for transportation, he is a law-abiding citizen; whereas if he delivers the liquor in his own wagon, in the usual course of business, he is a criminal, and liable to both fine and imprisonment. If this be the law it is certainly not the "perfection of reason." On the contrary, it is the climax of absurdity, and cannot fail to shock the common sense of every business man in the community. The principle relied upon by the Commonwealth to sustain this conviction is that the sale of liquor was not complete until its delivery in Montgomery county to the purchaser, and a large number of authorities were cited in support of this view. The pith of the argument upon this point, and the nature of the authorities cited, may be gathered from four lines of the printed argument on behalf of the Commonwealth. They are as follows: Had these goods been levied upon in virtue of a creditor of Hess [defendant], could it be contended that they could not be sold under that execution? We can find no decisions sustaining a contrary view." If we concede the soundness of this proposition, and that the authorities cited fully sustain it, it has no bearing upon the case. The question is not whether there was such a sale and delivery as would pass the title as against the execution creditors of the defendant. The true question is-and it has been wholly overlooked in many of the cases-whether there was a sale and delivery as between the vendor and the vendee. Our books are full of cases in which the sale has been held to be incomplete, for want of a delivery to the vendee, as against creditors, but in no one of them has it ever been held that it was not good between the parties, and that the title did not pass as to them.

As before stated, when the defendant received the orders from his customer, the goods were set apart for the latter and charged to him. Had the order been accompanied by the cash, and the goods thus set apart, no one would contend that the sale was not complete as between the parties. Can it make any possible difference that the liquors were charged to the purchasers upon the books of the defendant? The giving of a credit was as effective in passing the title as the payment of the money when the order was given. The acceptance of the order in either case is effective to pass the title as between vendor and vendee. In such case the vendee has the right of property with the right of possession. Under all the authorities the vendor acts as bailee, and not as owner, in carrying or de

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of creditors or bona fide purchasers without notice do not interfere. There is abundant authority for this principle. The general rule is that it is the contract to sell a chattel and not payment or delivery which passes the property. Benj. Sales, 357. The rule that the contract of sale passes the property immediately, before payment or change of possession, has been universally recognized in the United States. Benj. Sales, 329. There may be a bargain and sale of goods sufficient to transfer the title, and to support an action for goods bargained or sold, without any such transfer or delivery as will amount to a transfer of possession. Frazier v. Simmons, 139 Mass. 531. "When the terms of sale are agreed upon, and the bargain is struck, and every thing the seller has to do with the goods is complete, the contract of sale, says Chancellor Kent, becomes absolute as between the parties, without actual payment or delivery, and the property and the risk of accident to the goods vests in the buyer. He is entitled to the goods on payment or tender of the price, but not otherwise, when nothing is said at the sale as to the time of delivery or the terms of payment. But if the goods are sold on credit, and nothing is agreed upon as to the time of delivering the goods, the vendee is immediately entitled to the possession, and the right of property vests at once in him." Leonard v. Davis, 1 Black, 476, citing 2 Kent. Com. 671; Bradeen v. Brooks, 22 Me. 470; Davis v. Moore, 13 id. 427. Dixon v. Yates, 5 Barn. & Adol. 313, Baron Parke lays down the rule as follows: "I take it to be clear that by the law of England the sale of a specific chattel passes the property in it without delivery. Where by the contract itself the vendor appropriates to the vendee a specific chattel, and the latter thereby agrees to take that specific chattel, and to pay the stipulated price, the parties are then in the same situation as they would be after a delivery of goods in pursuance of a general contract. The very appropriation of the chattel by the vendor, and the assent of the vendee to take the specific chattel, and to pay the price, is equivalent to his accepting possession. The effect of the contract therefore is to vest the property in the bargainee." The same principle was recognized in Iowa in Dows v. Morse, 17 N.W. Rep. 495, where it was held that when under a contract corn was set apart in bins, and marked with the purchaser's name, there was a designation of the corn for the purchaser. In our own case of Garbracht v. Com., 96 Penn. St. 449, our Brother Sterrett illustrates the principle thus: " For example, a merchant in New York orders goods from a Boston house, and they are consigned thence to him, either by a carrier of his own selection or in the usual course of trade, the transaction is an executed Boston contract. 2 Pars. Cont. 586. The same principle is recognized in Shriver v. Pittsburg, 66 Penn. St. 446; Finch v. Mansfield, 97 Mass. 89. In the former case the city of Pittsburg was authorized to impose a tax upon all articles of trade and commerce sold in said city,' and the question was whether certain goods were sold in the city. About one-sixth of the gross sales of Shriver & Co., wholesale grocers, were made directly at their store in the city, without the intervention of outside agents. The other five-sixths were effected through agents employed for the purpose of procuring orders and making contracts of sale outside the city. These orders were transmitted to the firm, who filled them at their store in Pittsburg, and consigned the goods to the purchasers by the most direct means of conveyance. Shriver & Co. contended that the sales thus represented by the orders were not made in the city, and hence they were not taxable on the amount so sold; but it was held by this court that the goods thus ordered through their agents, put up at their store and shipped theuce to the customers, were sold in the city, and that the

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amount should be included in their account of sales returned for taxation." Whether the title of personal property passes by a sale depends upon the intent of the parties. Hence it was said by Mr. Benjamin, in his valuable treatise on Sales: "But the property passes at once on the sale, if such is the intent, though the seller is afterward to make the delivery of the goods. Such intent may be expressly declared, or may be inferred from the circumstances. Thus in Lynch v. O'Donnell, 127 Mass. 311, the seller was licensed to sell liquor at his store only. Liquor was ordered by a dealer in another town, under a previous arrangement, whereby the seller agreed to deliver goods so ordered at the depot addressed. Having so delivered the seller brought an action for the price. It was contested as an illegal sale, but it was in evidence that the seller expressly declared at the time of the contract: 'The sales are to be made at my store.' A verdict for the price was sustained." In Terry v. Wheeler, 25 N. Y. 520, it was said by Selden, J.: "No case has been referrca to by counsel, nor have I discovered any, in which, when the article sold was perfectly identified and paid for, it was held that a stipulation of the seller to deliver at a particular place prevented the title from passing. When the sale appears to be absolute the identity of the thing fixed and the price for it paid, I see no room for an inference that the property remains the seller's merely because he had engaged to transport it to a given point. I think in such case this property passes at the time of the contract, and that in carrying it the seller acts as bailee and not as owner. Where the sale has been made upon a credit, as in this case, the rule is the same, for when sales are made upon credit, the property identified and separated, the "legal effect then is that there has been an actual transfer of title, and an actual right of transfer of the bargain." Benj. Sales, 882. It is settled law that a sale of personal property passes the title as between vendor and vendee, when such property has been designated and set apart by the former. Dennis v. Alexander, 3 Penn. St. 50. It was said by Gibson, C. J., in Scott v. Wells, 6 Watts & S. 367: Even where actual possession has not been taken, the ownership and risk pass by the contract, if nothing remains to be done to the property by the vendor, such as counting, measuring, weighing or filling up, to ascertain the number, quantity or weight. Thus in Rugg v. Minett, 11 East, 210, turpentine had been sold at so much the hundred weight in casks, to be taken at the marked quantity, except two out of which the others were to be filled up before delivery, and those two were to be sold as containing indefinite quantities. The buyer employed a person to do the filling, but before he com pleted it the warehouse with its contents was destroyed by fire, and it was held that the property in those filled up had passed to the buyers, because nothing remained to be done to them by the vendors." To the same point is Winslow v. Leonard, 24 Penn. St. 14, where it was said by Lowrie, J.: "Where the lawful form of contracting is pursued, the vesting of the title always depends upon the intention of the parties, to be derived from the contract and its circumstances, and actual delivery, weighing and setting aside the goods are only circumstances from which the intention may be inferred as matter of fact. Sumner v. Hamlet, 12 Pick. 76; Riddle v. Varnum, 20 id. 280; Smyth v. Craig, 3 Watts. & S. 14. And this is the principle of numer ous cases wherein the title has been held to vest even where there has been no measurement." Citing Macomber v. Parker, 13 Pick. 175; Clark v. Baker, 5 Metc. (Mass.) 452; Sands v. Taylor, 5 Johns. 395; Chaplin v. Rogers, 1 East, 192; Hawes v. Watson, 2 Barn. & C. 540; Scott v. Wells, 6 Watts. & S. 357; Pleasants v. Pendleton, 6 Rand. (Va.) 473; Mottram v. Heyer, 1 Denio, 483; l ́alpy v. Gibson, 4 C. B. 464. The learned justice

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